Abstract

This article presents a legal-realist account of the century-long life span of modern Fourth Amendment doctrine. Part II briefly reviews the story of constitutional arrest and search doctrine from the framing of the Bill of Rights to the beginning of the twentieth century. It notes that common-law standards for arrests were originally understood to be salient features of the "due process of law" required by the Fifth Amendment, but that nineteenth-century judges effectively jettisoned that understanding. Although the Fourth Amendment had originally been understood simply as a ban against the issuance of too-loose search warrants, especially for revenue searches of houses, the loss of the original understanding of due process of law opened the way for the Supreme Court to later reinvent criminal procedure under the Fourth Amendment as "search and seizure" doctrine.

The article then analyzes the century of modern Fourth Amendment doctrine in terms of five distinct periods. In the initial period, discussed in Part III, the justices pursued a goal similar to that evident earlier in the remarkably activist 1886 ruling in Boyd by reinvigorating the Fourth Amendment as a protection of papers, especially business records. In the seminal decision in Weeks, the justices innovated by reading the common-law warrant requirement for house searches into the Fourth Amendment itself, by applying that constitutional standard to the conduct of officers as well as to legislation, and by announcing the exclusionary rule as the consequence of an unconstitutional search and seizure. Later cases then extended that analysis to seizures of business records from offices.

During the period of Prohibition, discussed in Part IV, the justices relaxed the Weeks warrant standard by inventing the concept of "Fourth Amendment reasonableness" in 1925 in Carroll to allow warrantless searches of autos for liquor in circumstances where searches incident to lawful arrests could not be justified. (Academics then prochronistically imposed that novel formulation on the past to invent the conventional but fictional account of Fourth Amendment history.) During the next period, discussed in Part V, the Roosevelt and Truman appointees then split as to whether the Weeks warrant conception or the Carroll reasonableness formulation should predominate.

Part V discusses the period of the Warren Court, which definitely revolutionized search and seizure insofar as it incorporated Fourth Amendment law into the Fourteenth Amendment in Mapp and thus made it applicable to state criminal justice proceedings. However, the content of the justices’ rulings during this period was actually mixed. Available statistics indicate that government and defendant victories were essentially even during all but the decisions announced in 1968 and 1969 when a strong liberal majority emerged after Justice Marshall replaced Justice Clark. However, the extension of constitutional protections to state criminal defendants fundamentally altered the politics of criminal justice.

Part VI then discusses the dismantling of search and seizure protections that began with Richard Nixon’s appointment of four justices known to be opposed to the Warren Court’s rulings. Statistics demonstrate that there was a marked change as government petitions soon became the predominate source of the search and arrest cases accepted for review. Additionally, except for a brief hiatus in the late 1970s that ended when Justice O’Connor replaced Justice Stewart, the conservative majority ruled predominately in favor of government parties during this final four-decade period as they undertook a multi-prong campaign to restrict virtually all aspects of search and seizure protections. After nearly abolishing the exclusionary rule in 1976, the Burger Court majority substantially curtailed the rule’s operation and also raised the threshold for standing. They also eased the standards for consent, restricted the scope of Fourth Amendment protections, eviscerated the probable cause standard in 1983 in Gates, and effectively ended enforcement of warrant standards in 1984 in Leon. More recently, the Rehnquist and Roberts Courts also effectively created discretionary police arrest and search authority in Atwater and Moore, and further curtailed exclusion while rejecting other potential modes for enforcing search protections.

The article concludes that, notwithstanding the seeming mass of search and arrest precedents, the supposed right against unreasonable searches and seizures has now been reduced to little more than a rhetorical apparition. Indeed, the destruction is so complete that the number of government certiorari petitions regarding search and seizure cases has decreased to a trickle. So little is left, it seems doubtful the right can be revived.